Bradshaw & Bradshaw (No 4)
[2024] FedCFamC1F 40
•5 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bradshaw & Bradshaw (No 4) [2024] FedCFamC1F 40
File number: NCC 535 of 2022 Judgment of: CHRISTIE J Date of judgment: 5 February 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Adjournment – Application for Review of the making of a recovery order – Where the subject child has absconded since the making of a recovery order – Where there is limited objective and up-to-date evidence in hearing the matter de novo – Where proceeding with determining the matter may compromise the interests of justice – Adjournment granted – Orders for the production of documents. Legislation: Family Law Act 1975 (Cth) s 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 5 February 2024 Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Gillard Family Lawyers Solicitor for the Respondent: Mr White, Powe & White Family Lawyers ORDERS
NCC 535 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRADSHAW
Applicant
AND: MR BRADSHAW
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
5 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 30 January 2024 is adjourned to a date to be fixed.
2.Pursuant to s69ZW of the Family Law Act 1975 (Cth) NSW Health is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.
3.Pursuant to s69ZW of the Family Law Act 1975 (Cth) NSW Police is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.
4.Pursuant to s69ZW of the Family Law Act 1975 (Cth) the Department of Communities and Justice is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents in their possession and control in respect of the child, X born 2010 for the period 1 November 2023 to date.
5.It is requested that in giving attention to the orders under s69ZW of the Family Law Act 1975 (Cth) the entities involved use their best endeavours to produce the documents as soon as practicable.
6.The mother has leave to issue any subpoena on short notice addressed to K Limited, to be made returnable on 13 February 2024 provided it is filed and served today.
7.The father has leave to issue a subpoena on short notice directed to D School, provided that the subpoena is filed and served today it may be made returnable on 13 February 2024.
8.Leave is granted to the mother to file and serve a subpoena directed to the telecommunications provider for Ms L, if such subpoena is filed and served today it may be returnable on 13 February 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a Bradshaw & Bradshaw has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
Before me today is an application to review the decision of a Senior Judicial Registrar to make a recovery order.
The parenting orders concern a child, X. X was born in 2010 and has turned 13. Final parenting orders were made after a contested hearing on 26 May 2023.
Since the making of the final orders, there has been a continuation of the litigation between the parents including an appeal, application for a stay, and a further application for final parenting relief.
The final orders which were made on 26 May 2023 provided for a parenting regime which saw X live with the mother and, after a period in which there was to be no time between father and child, provided for reintroduction of time with the father which was to gradually increase so that ultimately X would live with the mother and spend alternate weekend and school holiday time with the father.
The final orders were largely consistent with recommendations of a Court Child Expert.
The rationale for the final parenting orders, in broad terms, was to provide X with parenting orders which had the best opportunity of providing him with a meaningful relationship with both parents.
There has been a recent merits-based adjudication in respect of the child’s best interests which no doubt will inform the Court going forward. I have taken into account the findings of the trial judge as being relevant to the matters which I must consider.
Not surprisingly, the focus of this matter must be on that which is demonstrably different (or not) from the situation which prevailed at the time of the making of the final orders.
The mother says that during the period when X lived with her and spent not time with the father, he commenced calling her “mum” again, as opposed to using her first name. She says he was engaged in a range of activities both with friends and with her.
It is not in dispute that during the period when the time between X and the father was curtailed, neither party gives any evidence to the effect that that X absconded. The records of his high school attendance whilst in his mother’s care appear to be significant.
Against that, the father raises risk issues which must be considered on this application. He contends that X has had “[self-harm] thoughts” and has been absconding and recently been injured running away from his mother following the police actioning the recovery order.
The review was filed on 30 January 2024. On 1 February 2024, I made procedural directions.
I listed it before me for hearing today.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) require prompt disposition of applications but not in a manner or at a speed contrary to the interests of justice.
If nothing had occurred between the Recovery Order and the listing for the de novo hearing, then I would without hesitation dismiss the application for an adjournment but that is not the position.
The agreed facts appear to be as follows:
(a)The Recovery Order was made on 29 January 2024.
(b)The Recovery Order was to issue if the child was not returned by 4.15 pm on 31 January 2024.
(c)The Recovery Order issued as the father was not able to comply with Order 1 of the Orders of 29 January 2024.
Both parties filed affidavits but neither parties’ sworn evidence directly deals with the events of 29 January 2024 to 5 February 2024. The father has filed no evidence from the person who has care of X relevant to the events between 29 January and today.
This is material because I was told from the bar table that after the child was recovered by police and returned to the mother, he remained for a day (on which he attended school) and again absconded.
Exhibit 1 is a document from the “GP Access After Hours – [O Health Service]” dated 4 February 2024. It says “Nurse” and reads in part:
Pt present to clinic with L knee pain
Fell […]
Runaway from his mother who is verbally and physically abusive
Unable to full weight bear
Nil swelling, redness observed
Under “Hist/Exam” it says “Seen with [Ms M] --- carer as per community service/police”. A GP note appears to read:
… [Fell] on Friday evening and went down on his L knee.
Pain in L knee, in groin and L testicle. […]– Pain in L side of chest. Can put weight on the leg but not fully weight bear…
O/E Tender Lowert chest wall. No definite […] seen ?? […].
Tender L knee – the patella.
Xray L knee ==>> patella ok, evidence of [medical condition]
...
treat as soft tissue Soft tissue Injury management: Rest, ice, simple analgesia.
See [Dr N] for follow up Thursday or Friday.
That is the only objective evidence before the Court in respect of what has occurred between the period 29 January 2024 to date.
The advantages of proceeding today are clarity and certainty – in particular for the child.
Against that, the disadvantages would appear to be:
(a)There is an Independent Children’s Lawyer (“ICL”) who was just appointed and consequently unable to participate today;
(b)The Court would benefit from documents produced pursuant to s 69ZW of the Family Law Act 1975 (Cth). Such order would be directed to NSW Police, NSW Health and the Department of Communities and Justice;
(c)In addition, the mother wishes to have the Court issue a subpoena to K Limited for phone records.
Both parties made submissions about the relevance or otherwise of such phone records. The father’s solicitor indicated that the adjournment would not produce any probative evidence. I disagree. The objective sources of material available to the Court and the assistance of an ICL are of significant value in a case which is complex and where the child is currently living with a non-party.
I therefore propose to grant the application for an adjournment and make directions designed to assist the Court with a proper adjudication.
I take this opportunity to stress that the evidence which is of utility is admissible, first-hand dispassionate recitation of lay observations, not frank criticisms of the Court and its processes. While parties will inevitably feel frustrated by outcomes which do not meet their expectations, it is the role of the legal practitioners to provide the Court with evidence and the client with legal advice and not to act as a mere mouthpiece for their clients.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 5 February 2024
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